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Favoritism may be defensible, still a bad idea

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in Discrimination and Harassment,Human Resources

It’s certainly not a good idea to let a manager play favorites, especially if a sexual atmosphere at work makes it look like the boss has a “harem” of female employees.

But if that happens, it’s not automatic that someone outside that clique will win a sexual harassment suit.

To do so, an employee must show that the favoritism interfered with the job or that not joining in led to punishment.

Recent case: Amy claimed that her direct supervisor created a sexually charged working environment—and that other female respiratory therapists in the boss’s inner circle gained favors, such as being allowed to arrive late for work. Those like Amy, who refused to become part of the “harem” allegedly didn’t receive such workplace perks.

Amy lost her job when she didn’t respond to an HR inquiry about her plans to return to work after using up her available FMLA leave.

She sued, alleging her termination was retaliation for taking FMLA leave and that her supervisor’s practices forced her to work in a sexually hostile environment.

The court first determined that she had no FMLA retaliation case—failing to respond to HR’s legitimate request sunk that part of her lawsuit.

But the court also dismissed her sexual harassment claim. Reason: Amy hadn’t missed any promotions, lost any benefits or been punished for not going along with the supervisor’s sexually charged comments and behavior. The fact that others may have derived some benefit from participating wasn’t relevant. (Smith v. Touro Infirmary, No. 15-30851, 5th Cir., 2016)

Final note: The lesson from this case isn’t that you should allow a supervisor free reign to harass.

While the employer wasn’t found liable for Amy’s harassment claim in this case, one of the other subordinates could easily have sued and probably been able to prove coercion.

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